I am Phil Mendelson, an At-Large member of the Council of
the District of Columbia. I am testifying in this case because of my
role as Chairman of the Council's Committee on Public Safety and the
Judiciary. As chair of this committee I am responsible for understanding
the implications of the recent Supreme Court Case (Heller v. District
of Columbia), and for drafting legislation revising the gun control
laws in the District.

I am concerned about the proposed text amendments for two
reasons. First, they are unduly restrictive. Second, they invite
challenge either in the courts or, more likely, by Congress. To give you
context: on September 17th the U.S. House of Representatives adopted by
a 266-152 vote a bill to rescind the District's authority to legislate
am' gun control. The "Findings" in that bill included such
statements as:

"The law-abiding citizens of the District of
Columbia are deprived by local laws of handguns, rifles, and shotguns
that are commonly kept by law-abiding persons throughout the United
States for sporting use and for lawful defense of their persons, hones,
businesses. and families."

"Officials of the District of
Columbia have indicated their intention to continue to unduly restrict
lawful firearm possession and use by citizens of the District."

The House bill passed notwithstanding the fact that one
day earlier the Council had adopted. and Mayor Fenty had enacted,
legislation addressing the very specific concerns being voiced by
constituents as well as members of Congress.

Response to the Supreme Court Decision

I have observed two types of response to the Supreme
Court's June 26"' decision: First, handguns are legal, let's find
the best regulation that promotes public safety. This is the direction
in which the Council has moved. The second response is to give as little
ground as possible - limit how many guns may be registered, make it
burdensome and expensive, limit the purpose of registration (i.e., for
self defense, but not recreation or practice), unduly restrict gun
dealers, and so forth.

Gun dealers are a critical component of gun control. They
are critical to the District's law, because citizens may acquire or
transfer firearms only through licensed gun dealers. They are critical
to our neighboring states, because D.C. guns used in crimes in those
states are more easily traced if there are licensed District gun dealers - dealers who are
required to keep records under our law as a condition of their license.
Dealers are critical to federal gun control, because handguns may be
purchased interstate only through gun dealers located in the purchaser's
state of residence.

In short, we do not want to limit gun dealers, we want
them. We want them as critical players in our gun control law.

The Proposed Text Amendments

The Office of Planning's July 25th set-down report noted
that the proposed regulations are based on the "existing zoning
regulations pertaining to sexually oriented businesses, which are also
limited by special exception to the downtown area, and which have
similar proximity requirements." This comparison is unwarranted.

First, I am unaware of any research showing that a
regulated gun dealer is a nuisance in any way that comes close to a
sexually oriented business. I am unaware that gun dealers attract
loitering or the pandering of sex. I am unaware of a statistical
analysis showing that gun dealers attract a higher incidence of crime,
e.g., theft, robbery, and prostitution -- or shootings.

Second, you must ask what aspect(s) of a gun dealer pose
a problem for the community in which the dealer locates. The only answer
I come up with is security. This problem is not locational. What I mean
is that the text amendments should address security. Restricting gun
dealers by zone district is something else -- it has little or nothing
to do with security.

The Office of Planning analysis does not mention any
concerns or problems other than security.

Third, I find the Office of Planning's examination of
regulations from other U.S. municipalities troubling. It is very
limited. It omits several large cities which I would want to compare -
e.g., Boston, New York, Chicago, Los Angeles, San Francisco (but it does
include Culver City, California). It also includes no analysis of each
municipality's gun control laws, so there is no understanding of (or
ability to compare) the legal restrictions on gun ownership which the
zoning regulations supplement.

Fourth, you should be aware of past practice in the
District of Columbia. Research by my staff earlier today found that in
1972 (three years before Council consideration of our gun control law
subject to Heller) there were 10 gun dealers in the District. They were
not limited to the high density downtown commercial districts. There was
a dealer at 18th and Adams Mill Road, others at 5201 Georgia
Avenue, NW, 1812 R Street, NW, 3172 Bladensburg Road, NE, and 2747
Martin Luther King Jr. Blvd. SE.

My office looked at the phone directories for five years
dating back to 1943. It is clear that the 1958 zoning regulations did
not perceive gun dealers as a nuisance, or as a special use that should
be limited to the highest density commercial districts. Rather, it
appears gun dealers have always been permitted as of right in moderate
and medium density commercial districts.

Finally, you should know that the District's current gun
control law prohibits the "display of any firearm or ammunition in
windows visible from a street or sidewalk," and, further, requires
that all firearms "be kept at all times in a securely locked place
affixed to the premises." Moreover, our law requires at least 48
hours to purchase a firearm, so nobody can walk into a gun store and
expect to walk out minutes later with a gun. However, this fall the
Council will be adopting permanent amendments to this law, utilizing
best practices from other jurisdictions regarding gun dealers. While the
Zoning Commission ought to consider security as it moves forward with
text amendments, please understand that much is being done by others
regarding this issue.

Recommendation

Attached to my testimony are detailed recommendations for
the text. A summary of my recommendations is:

Prohibit firearms sales in the C-1
and C-2-A zone district;

Permit firearms sales, under a
special exception, in C-2-B through C-3-A zone districts;

The primary focus of the special
exception should be security-related issues;

Permit firearms sales as a matter of
right in the C-3-B zone district and above;

Limit the firearms restriction in
connection to home occupations by limiting the actual, physical sale of firearms; and

I want to urge caution in establishing criteria for the
placement of Firearms Retail Sales Establishments and Firearms Dealers.
Unlike each of the communities that the Office of Planning (OP) studied,
the District of Columbia is under intense scrutiny from Congress. I
strongly advise against taking any action that will invite measures that
would undermine the Zoning Commission's and the Council's ability to
make the laws that govern our city.

Definitions

First, defining the term Firearms Retail Sales
Establishment is a critical step in confirming the legitimacy of these
places to exist as a permitted use. However, you define a Firearms
Dealer as a person in Section 199, but then try and prohibit it as a use
under Section 203.9 (Home Occupations). Moreover, you should not
prohibit the use, only the actual, physical transfer of a firearm. A
Firearms Dealer who is not operating a Firearms Retail Sales
Establishment (is not physically handling guns) is really only running
an office, which I don't think you can legitimately seek to control more
strictly than any other office use. On that account, it is not clear to
me what you gain by defining Firearms Dealer; it appears unnecessary.

Special Exception Criteria

As proposed by OP, the opening of any Firearms Retail
Sales Establishment would be permitted only after approval by the Board
of Zoning Adjustment (BZA) as a Special Exception. In addition to the
Special Exception evaluation standards contained in Section 3104, there
would be proximity restrictions and limitations on display of firearms
and ammunition.

As you know, the evaluation criteria in Section 3 104 arc
broad. In order to qualify the use must be judged by the BZA to "be
in harmony with the general purpose and intent of the Zoning Regulations
and Zoning Maps and will not tend to affect adversely the use of
neighboring property..." In light of the presumption of
compatibility that exists for special exception uses, I wonder what
types of conditions the Commission might envision the BZA placing on a
Firearms Retail Sales Establishment that are related directly to the
sale of weapons or ammunition. In reviewing Table I of the OP report, it
appears that the only conditions that the BZA could legitimately place
on these establishments would relate to security (since gun dealers seem
less likely to generate noise, odor, trash, traffic, etc. than most
other types of retail use).

In order not to be overly prescriptive then, would it not
be preferable to outline those physical security requirements that are
appropriate and establish them as matter-of-right criteria- not unlike
the very specific requirements for locating an animal shelter in an
Industrial Zone District?

Zones Where Firearms Retail Sales Establishments are
Permitted

In addition to creating, in at least some zone districts,
the potential for Firearms Retail Sales Establishments to be located as
a matter-of-right, I suggest that the Commission revisit the progression
of Commercial Districts (from C-I through C-5) and broaden the number of
zones in which Firearms Retail Sales Establishments can locate. If the
Commission looks at the types of uses permitted in C-1, you will see
that they are intended to cater to a very localized clientele. In C-2-A,
the list of permitted uses is expanded considerably, although some with
the potential for adverse impacts are permitted by Special Exception. In
making the transition from the C-2 zones to C-3-A and above, rather than
adding significantly to the list of permitted uses, certain uses that
are permitted by Special Exception only in the C-2 zones become a
matter-of-right in C-3-A, -B, and -C. I would recommend a similar
progression for Firearms Retail Sales Establishments.

The argument for limiting these establishments to the
most intense commercial districts (especially when equated to the
locational restrictions on sexually-oriented businesses) is that they
are less likely to be proximate to residential and mixed-uses. However,
the proposed proximity limitations already address that concern in a
more effective way without being overly restrictive.

Therefore, I specifically suggest that Firearms Retail
Sales Establishments be prohibited in the C-1 and C-2-A Districts, be
permitted by Special Exception in the C-2-B through C-3-A Zone
Districts, and be permitted as a matter-of-right in the C-3-B Zone
District and above (and, by extension, the Industrial Zone Districts).
In all cases where the use is permitted, the proposed proximity
restrictions and display limitations should apply, in addition to
specific physical security requirements that OP could recommend.

Locational Restrictions

The table in the OP report notes that Baltimore has a 100
yard separation of gun sales from parks, churches, schools, etc.,
Detroit and Denver have no such minimum distance requirement, while
Minneapolis and Pittsburgh require a 500' set-off. The proposed text
amendments, however, require 600 feet "R" and "SP"
Districts, as well as 600 feet from churches, schools, libraries, and
playgrounds. Notably, none of these cities have the strict degree of gun
control that exists in the District.

Given D.C. law and the security requirements you should
write into the regulations, the Commission should reduce the set-off
from being proposed by the Office of Planning.